Enter your email to subscribe:

Today the Supreme Court decided Massachusetts v. EPA, holding that Massachusetts (because it's a State and all) gets to play by special Article III rules. Professor Jonathan H. Adler provides a thoughtful review here, which is titled after the following cites-removed passage from the Chief Justice's dissent:

Today’s decision recalls the previous high-water mark of diluted standing requirements, United States v. Students Challenging Regulatory Agency Procedures (SCRAP). SCRAP involved “[p]robably the most attenuated injury conferring Art. III standing” and “surely went to the very outer limit of the law”—until today. In SCRAP, the Court based an environmental group’s standing to challenge a railroad freight rate surcharge on the group’s allegation that increases in railroad rates would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods. According to the group, some of these resources might be taken from the Washington area,resulting in increased refuse that might find its way into area parks, harming the group’s members.

Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’s decision is SCRAP for a new generation.